Opinion
71 KA 19-01426
03-17-2023
The PEOPLE of the State of New York, Respondent, v. Rasheen ROSS, Defendant-Appellant.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and criminal possession of a weapon in the third degree (§ 265.02 [3]). The charges arose from an incident in which defendant allegedly dropped a handgun on the ground while he was being pursued by the police on foot following their attempt to initiate a traffic stop.
Initially, defendant contends that the statutes under which he was convicted are unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Defendant failed to raise a constitutional challenge before Supreme Court, however, and therefore any such contention is unpreserved for our review (see People v. Jacque-Crews , 213 A.D.3d 1335, 183 N.Y.S.3d 234, 2023 N.Y. Slip Op. 00785, *1 [4th Dept. 2023] ; see generally People v. Davidson , 98 N.Y.2d 738, 739-740, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002] ; People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016] ). Contrary to defendant's contention, his "challenge to the constitutionality of [the statutes] must be preserved" ( People v. Baumann & Sons Buses, Inc. , 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006], rearg denied 7 N.Y.3d 742, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006] ). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, we cannot conclude that the jury "failed to give the evidence the weight it should be accorded" ( id. ). To the extent there is conflicting testimony about whether defendant was the one who possessed the handgun recovered by the police on the night in question, we conclude that it merely "presented an issue of credibility for the jury to resolve" ( People v. Boyd , 153 A.D.3d 1608, 1609, 61 N.Y.S.3d 431 [4th Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] [internal quotation marks omitted]).
We agree with defendant, however, that reversal is required on the ground that the court erred in granting the People's request to charge the jury on the issue of constructive possession. Defendant preserved his contention by objecting to the instruction on constructive possession (see generally CPL 470.05 [2] ; People v. Burke , 197 A.D.3d 967, 968, 153 N.Y.S.3d 338 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 688, 181 N.E.3d 1116 [2022] ; cf. People v. Linares , 167 A.D.3d 1067, 1070, 89 N.Y.S.3d 454 [3d Dept. 2018], lv denied 33 N.Y.3d 950, 100 N.Y.S.3d 152, 123 N.E.3d 811 [2019] ). On the merits, and as the People effectively concede, we agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question—i.e., that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered (see People v. Diallo , 137 A.D.3d 1681, 1682, 27 N.Y.S.3d 778 [4th Dept. 2016] ; People v. Nevins , 16 A.D.3d 1046, 1047, 791 N.Y.S.2d 771 [4th Dept. 2005], lv denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979 [2005], cert denied 548 U.S. 911, 126 S.Ct. 2938, 165 L.Ed.2d 963 [2006] ; see generally People v. Solomon , 96 A.D.3d 1396, 1397, 946 N.Y.S.2d 348 [4th Dept. 2012] ). We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury's general verdict was based upon defendant's actual possession of the handgun or his constructive possession of it (see Diallo , 137 A.D.3d at 1682-1683, 27 N.Y.S.3d 778 ; see also People v. Kims , 24 N.Y.3d 422, 438, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014] ; People v. Martinez , 83 N.Y.2d 26, 35, 607 N.Y.S.2d 610, 628 N.E.2d 1320 [1993], cert denied 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 [1994] ).